O.S.No.204 of 2019 1 Dt 12.09.2023
IN THE COURT OF THE VII ADDL.SENIOR CIVIL JUDGE: VIJAYAWADA.
PRESENT:SMT K.NEELIMA,
VII ADDITIONAL SENIOR CIVIL JUDGE, VIJAYAWADA
Tuesday, this the 12th day of September, 2023
OS.No.204/2019
Between:
Nerusu Naga Raju s/o Raghavulu, 44 Years, R/o D.No.48-11-53, Left side of Anjaneya swami temple,
Currency Nagar, Vijayawada....Plaintiff
AND 1Kanala Nasarbi w/o Late Meera, 53 Years, R/o Priyadharsani colony, Gupta’s road, Bhavanipuram, Vijayawada 2Akumalla Khasim s/o A.M.Saheb, 44 Years, R/o 76-6-
90/6, Bhavanipuram, Vijayawada....Defendants
(D2 is added as per orders in IA No.307/21 dated 21.12.2021)
This Suit is coming on 11.9.2023 before me in the presence of Sri K.S.Ramaiah, Advocate for plaintiff, and of Sri S.R.Prasad, Advocate for defendants and the matter having stood over till this day for consideration, this Court delivered the following:
JUDGMENT
The plaintiff filed the suit seeking declaration of right and title over the suit schedule property.
2.The brief averments of the plaint are as follows:-
The plaintiff submitted that, he is absolute owner of the land an extent of 306 square yards in R.S.No.474 of Gollapudi village. He purchased the property from Rejeti Ramanamma, Mamidi Raja Lakshmi, Muktipudi Solmon,
Thummalapenta Rama Devi and Maruga john Wilson being represented by GPA agent Jala Prema Swarupa Kumari under a registered sale deed bearing document No.1753/1997 for valuable consideration of Rs.61,200/- since then he has been in possession and enjoyment of the plaint schedule property with absolute rights. The vendors of the plaintiff purchased the property under a registered sale deed bearing No.1734/1985 on 29.03.1985 and they executed a registered GPA in favour of Jala Prema Swarupa Kumari and she is competent to execute sale deed on behalf of vendors, the said GPA registered as a document
No.2228/BK4/1989 on 02.12.1989.
The 1st defendant no way concerned with the plaint schedule property is intending to encroach upon the schedule property by disposing the plaintiff with an intention to grab the property and to gain wrongfully and to cause wrongful loss to the plaintiff. The 1st defendant and her henchmen came to the plaint schedule property at about 9.00 AM on 05.05.2017 and tried to disposes the
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plaintiff by using force, but the plaintiff with the help of elders and neighbours prevented the high handed acts of the 1st defendant. Again the defendant tried to disposes the plaintiff on 5.00 PM on 09.05.2017 the plaintiff resisted the acts of the 1st defendant. The plaintiff learnt that the defendant has went upon to dispossess the plaintiff with the support of anti-social ailments and muscle men.
Hence, the plaintiff filed the suit seeking declaration of his right and title over the suit schedule property.
3.The 1st defendant filed written statement denying the claim of the plaintiff.
She submitted that she is absolute owner of the plaint schedule property. She purchased the plaint schedule property from Gummadi Bapuji being represented by his GPA agent Yaradla Velugonda Reddy and Bhumireddy Venkata Ranga
Reddy under a registered document No.5927/2004 on 27.09.2004 since then she has been in peaceful possession of the property. The defendant submitted that the flow of title of the predecessor title of the defendants starts from 07.07.1962 vide document No.2583/1962 and again another document was executed on 22.09.1990 vide document No.5923/1990. As such the plaint schedule property covered under the line of convenience deals as such the defendant and her predecessors in title are having clear title to convey the same to their vendees.
The sale deed relied on the defendant and her link documents are not pertaining with the plaint schedule property and the plaintiff under guise of the said documents intents to grab the property of the defendant. The plaintiff has been working as the police constable in II Town Police Station and with the help of police force tried to grab the property and threatened the defendant and family members with dire consequences. The defendant and her family members refused to surrender the dictates of the plaintiff. Thus he filed the suit for mere injunction which is not maintainable under Law, in fact no injunction can be granted against the true owner herein defendant. For the above said reasons, the 1st defendant requested the Court to dismiss the suit.
Here it is pertinent to mention that the plaintiff initially filed the suit seeking permanent prohibitory injunction against the sole defendant Kanala
Nasarbi. After filing of the written statement by the defendant and in view of the contentions of the plaintiff has taken steps and he amended the plaint and sought relief of declaration instead of permanent injunction and also impleaded 2nd defendant as party to the suit.
4.The 2nd defendant filed written statement denying the claim of the plaintiff, he submitted that he along with 1st defendant purchased the suit schedule property and became absolute owners. The flow of title of predecessors in title of the defendants starts from 07.07.1962 vide document No.2583/1962 and another document was executed on 22.09.1990 vide document No.5923/1990. As such
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the plaint schedule property covered under the said line of convenience deeds and as such the defendants and their predecessors in title are having clear title and marketable title to convey the same to the vendees. The suit filed for declaration without seeking recovery of possession is not maintainable. The plaintiff is not in possession of the suit schedule property as such mere suit declaration is not maintainable. The relief claimed against the 2nd defendant is barred by limitation, since he purchased the property along with 1st defendant on 27.09.2004 under a registered sale deed which is public document. The plaintiff filed the original suit in 2017 and nearly 13 years were elapsed from the date of purchase of the plaint schedule property by the defendants. In fact the plaintiff is well aware about the purchase of the property by the defendants. Hence 2nd defendant requested the
Court to dismiss the suit.
5.Basing on the above pleadings the following issues are settled for trial.
1) Whether the plaintiff is lawful possession and enjoyment of the property or not?
2) Whether the defendant is absolute owner of the suit schedule property and in possession and enjoyment?
3) Whether the plaintiff is entitled for relief of permanent injunction as prayed for?
4) Whether the suit for mere injunction without declaration maintainable?
5) To what relief?
6.In view of the amendment and additional written statement filed by the defendant the following additional issues are settled.
1) Whether the plaintiff is entitled to the relief of declaration as prayed for?
2) Whether the suit for mere declaration is maintainable?
3)Whether the plaintiff’s claim against 2nd defendant is barred by limitation?
4) Whether the plaintiff is not entitled for the relief of declaration without seeking recovery of possession as pleaded by the defendants?
5) To what relief?
7.During the course of trial on behalf of plaintiff, Pws.1 to 3 are examined and
Exs.A1 to A6 are marked. On behalf of defendants, Dws.1 and 2 are examined
Exs.B1 to B17 are marked.
8.Heard arguments submitted by learned counsel plaintiff and defendants.
The plaintiff filed written arguments.
Issue Nos.1 to 5:
9.These issues are framed at the earliest instance. The suit was filed by the plaintiff for permanent prohibitory injunction against 1st defendant. Subsequent to filing of the written statement the plaintiff got amended the suit from permanent prohibitory injunction to declaration of title. It is pertinent to observe that the plaintiff substituted the relief of permanent prohibitory injunction with
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declaration of title. The plaintiff did not choose to seek for the relief of permanent prohibitory injunction either independently or as they consequently relief.
Therefore issues 1 to 5 pal into in significance and they need not be answered.
10.Subsequent to the amendment, subsequent to filing of the additional written statement this Court framed additional issues 5 in number. In view of the above pleadings and evidence on record I proceeded to answer additional issues as follows. In view of the matter additional issues 1 and 4 answered together.
Additional issues 1 & 4
1) Whether the plaintiff is entitled to the relief of declaration as prayed for?
4) Whether the plaintiff is not entitled for the relief of declaration without seeking recovery of possession as pleaded by the defendants?
11.The plaintiff claims that he purchased the suit schedule property from his vendors Rejeti Ramanamma, Mamidi Raja Lakshmi, Muktipudi Solmon,
Thummalapenta Rama Devi and Maruga john Wilson being represented by their
GPA agent Jala Prema Swarupa Kumari under a registered document on 15.09.1997. Whereas the defendants 1 and 2 claims that they purchased the suit schedule property from its original owner by name Yaradla Velugonda Reddy and
Bhumireddy Venkata Ranga Reddy under a registered document No.5927/2004 on 27.09.2004. As seen from the rival contentions both parties are claiming ownership basing on registered sale deeds. In view of the pleadings and the relief claimed in the suit the burden of proof is on the plaintiff to prove his right, title and his entitlement to get relief of declaration.
12.The plaintiff in order to prove his contention examined Pws.1 to 3 and got marked Exs.A1 to A6. Out of the said documents Ex.A1 is original sale deed stands in the name of plaintiff executed by his GPA holder Jala Prema Swarupa
Kumari on behalf of original vendors Rejeti Ramanamma, Mamidi Raja Lakshmi,
Muktipudi Solmon, Thummalapenta Rama Devi and Maruga john Wilson. Ex.A2 is certified copy of registered GPA bearing document No.2229/1989 executed by original vendors Rejeti Ramanamma, Mamidi Raja Lakshmi, Muktipudi Solmon,
Thummalapenta Rama Devi and Maruga john Wilson in favour of Jala Prema
Swarupa Kumari. Ex.A3 is certified copy of sale deed dated 29.03.1985 executed by original owners K.Venkata Ramanamma her husband Venkateswararao and her minor sons Subrahamanyam and Anjaneyulu represented by guardian
K.Venkateswararao executed in favour of plaintiff’s vendors Rejeti Ramanamma,
Mamidi Raja Lakshmi, Muktipudi Solmon, Thummalapenta Rama Devi and
Maruga john Wilson. Ex.A4 is encumbrance certificate relating to the suit schedule property, the said encumbrance certificate contents entry regarding sale of property under Ex.A1. Ex.A5 is photographs along with CD relating to suit
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schedule property. Ex.A6 is caveat petition filed by the defendants against the plaintiff.
13.Against this the defendants examined Dw.1 and 2 and got marked Exs.B1 to B17. Ex.B1 is lay out plan which was confronted to the plaintiff while he was examined as Pw.1 and he admitted the same and said document was marked as
Ex.B1. Ex.B2 is original sale deed stands in the name of defendants 1 and 2 executed by their vendor G.Bapuji represented his GPA agent Yaradla Velugonda
Reddy and Bhumireddy Venkata Ranga Reddy. Ex.B3 is original unpossessory sale agreement cum GPA executed by G.Bapuji in favour of Yaradla Velugonda
Reddy and Bhumireddy Venkata Ranga Reddy. Ex.B4 is receipt executed by
Bapuji in proof of receipt of consideration of Rs.1,27,000/-. Ex.B5 is original rectification deed executed by GPA holder Jala Prema Swarupa Kumari in favour of G.Bapuji the said document executed to rectify wrong schedule mentioned in original sale deed dated 22.09.1990. Ex.B6 is original sale deed executed by GPA holder Jala Prema Swarupa Kumari representing original vendors in favour of
Gummadi Bapuji. Ex.B7 is certified copy of GPA executed by original owners
K.V.Ramanamma and her sons Subrahmanyam and Anjaneyulu in favour of Jala
Prema Swarupa Kumari. Ex.B8 is certified copy of settlement deed executed by
K.Venkateswararao in favour of his wife K.Venkata Ramanamma. Ex.B9 is FMB.
Ex.B10 is GPA executed by Rejeti Ramanamma, Mamidi Raja Lakshmi, Muktipudi
Solmon, Thummalapenta Rama Devi and Maruga john Wilson in favour of Jala
Prema Swarupa Kumari. Ex.B11 is RSR relating to Gollapudi village. Ex.B12 is
No.3 account for the fasali 1410 of Gollapudi village relating to survey No.465/1B.
Ex.B13 is encumbrance certificate. Exs.B14 to B17 are sale deeds are stands in the name of owners of the neighbours of the suit schedule property.
14.On a careful perusal of pleadings and evidence on recored filed by both the parties which clearly show that, the suit schedule property and some other property put together to an extent of Ac.2.00 cents originally belongs to
K.Venkateswararao, he out of love and affection towards his wife executed registered gift settlement deed under Ex.B8 while giving life interest to his wife and vested remainder to the children expected to born at a later point of time vide document No.2583/1962 dated 07.07.1962. Here it is an admitted fact that
K.Venkateswararao representing his minor sons and K.Venkata Ramanamma along with one Nagamani sold Ac.0.56 cents out of Ac.2.00 cents to Rejeti
Ramanamma, Mamidi Raja Lakshmi, Muktipudi Solmon, Thummalapenta Rama
Devi and Maruga john Wilson. It is also brought on record by both the parties that one Jala Prema Swarupa Kumari purchased 895.4 square yards out of
Ac.0.56 cents from Rejeti Ramanamma, Mamidi Raja Lakshmi, Muktipudi
Solmon, Thummalapenta Rama Devi and Maruga john Wilson vide document
No.2229/1989. I do not find any dispute regarding above said documents till this
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point. At this stage while the plaintiff claimed that he purchased 306 square yards from Jala Prema Swarupa Kumari in her capacity as GPA holder of Rejeti
Ramanamma, Mamidi Raja Lakshmi, Muktipudi Solmon, Thummalapenta Rama
Devi and Maruga john Wilson under Ex.A2 dated 30.11.1989. The sale deed
Ex.A1 reveals that plaintiff purchased 306 square yards from Jala Prema
Swarupa Kumari for valuable consideration of Rs.61,200/- and the property was delivered to the plaintiff on the date of sale itself. Page 3 line No.8 of Ex.A1 there is a specific recital regarding delivery of property to the plaintiff.
15.The plaintiff filed Exs.A1 to A6 in support of his case. In view of the above the plaintiff claims that he is absolute owner of the suit schedule property in addition to the documentary evidence the plaintiff examined himself as Pw.1 and examined Pws.2 and 3. Pw.2 is the father-in-Law of the plaintiff and also one of the attestor of Ex.A1. His evidence to the limited extent to prove the due execution of Ex.A1. Whereas the plaintiff examined Pw.3 to prove the attempt of the encroachment made by 1st defendant. Pws.2 and 3 cross examined at length by the learned counsel for defendants 1 and 2, Pw.3 deposed that the husband of the 1st defendant along with 10 others came to schedule property and tried to encroach the schedule property and the plaintiff with the help of elders and neighbours resisted the acts of the defendants. Through the evidence of Pws.2 and 3 the plaintiff proved the execution and passing of consideration and delivered the schedule property under Ex.A1. By examining Pws.2 and 3 the plaintiff also let in evidence that the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit and the interference caused by the defendants.
16.Per contra the defendants 1 and 2 examined themselves as Dws.1 and 2 they also exhibited B1 to B17. Peculiarly neither of the defendants choosed to let in any independent evidence to prove their title deed under which they claimed to purchase the suit schedule property. Here it may not be out of place to refer to the evidence and written statement filed by 1st defendant. Perusal of written statement of 1st defendant shows that initially she claimed that she purchased plot No.69 in the lay out and that it is different and separate property from the suit schedule property. However she claimed that as the survey number of the property purchased by her R.S.No.474 of Guntupalli village and the survey number shown in schedule of the plaint is 47/1 of the same village and hence the suit schedule property is not correct and the plaintiff has no right over the same.
While coming to the cross examination of Dw.1, he admits about the existence of suit schedule property and also admits that the property belongs to the plaintiff his admissions are reproduced here under for clarity.
17.In para No.5 of deposition of Dw.1 in para 2 of last line Dw.1 admitted that the plaint schedule property belongs to the plaintiff.
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18.In my considered opinion this admission of Dw.1 is crucial to the aspect of proving the right and title of the plaintiff over the suit schedule property.
However in this case the plaintiff got appointed advocate commissioner for localization of the suit schedule property, but after filing of the report neither the advocate commissioner nor the surveyor who measured the property were examined by either of the party to the suit. Therefore this Court left with no other option but to consider the advocate commissioner report and surveyor statement available as a part of the suit record. In my opinion the commissioner has to localize the suit schedule property or in other words has to identify the property referred in Ex.A1 and Ex.B2 documents and to give opinion to whether the property referred in both the documents are one and the same are different from each other. I carefully went through the commissioner report and the surveyor’s statement but could not find any such averment regarding the above.
Unfortunately the advocate commissioner and the surveyor measured the property and prefer to give the measurements of each side of the property and highlighted the difference in the measurements and overall extent of the plot. I did not even find a sentence in the commissioner report that he identified the property. He did not even say that both the documents referred to the same property. Above all, the advocate commissioner report suggest that he gave preference to measure the property shown him and measured it and filed report mechanically.
19.In view of the above stated ambiguity in the commissioner report and surveyor statement it is noticed that they gave the report and statement without understanding of the actual dispute between the parties. Thus the commissioner report is not helpful to the Court to come to a logical conclusion in identifying the disputed property in the present case. Even surveyor statement do not disclose that whether he measured the property basing on Ex.A1 and B2 documents and whether property referred in Exs.A1 and B2 are one and the same and whether he identified the disputed property with the help of Exs.A1 and B2 independent of the statement of Pw.1 and his counsel and Dw.1 and his counsel. In view of the failure of the commissioner report as stated above I am left with no other option but to depend upon the oral and documentary evidence let in by the plaintiff and defendants.
20.As already stated above, the plaintiff relied on Exs.A1 to A6 to substantiate his contention and the defendants relied on Exs.B1 to B17 to substantiate their contention. However as already observed by me above, the property originally belongs to K.Venkateswararao who executed a registered settlement deed in favour of his wife K.Venkata Ramanamma and subsequently they sold Ac.0.56 cents out of Ac.2.00 cents to their vendees by name Rejeti Ramanamma, Mamidi
Raja Lakshmi, Muktipudi Solmon, Thummalapenta Rama Devi and Maruga john
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Wilson. Actually dispute regarding the property has arisen from here. It is the specific contention of the defendants that Jala Prema Swarupa Kumari sold more extent than what she purchased under registered GPA-cum-agreement of sale the same was referred in the written statement. The document under Ex.A1 relied by the plaintiff shows that Jala Prema Swarupa Kumari purchased 895 square yards under GPA-cum-agreement of sale vide document No.2229/1989, dated 30.11.1989 from her vendors and sold 306 square yards to the plaintiff under
Ex.A1 for valuable consideration and delivered the possession to the plaintiff.
21.I perused Ex.B2 document it was executed by Yaradla Velugonda Reddy and Bhumireddy Venkata Ranga Reddy in the capacity of GPA holder of
Gummadi Bapuji in favour of defendants 1 and 2. The vendors of the defendants purchased the property under Ex.B3 unpossessory agreement of sale-cum-GPA
dated 16.07.2004 vide document No.4022/2004 in turn Gummadi Bapuji
purchased 342 square yards from K.Venkateswararao and others represented by
GPA holder Swaruparani under Ex.B6 vide document No.5923/1990. After perusal of all these documents it can come to conclusion that K.Venkateswararao and his wife K.Venkata Ramanamma sold Ac.0.56 cents to their vendees Rejeti
Ramanamma, Mamidi Raja Lakshmi, Muktipudi Solmon, Thummalapenta Rama
Devi and Maruga john Wilson by executing a registered sale deed and from them
Jala Prema Swarupa Kumari had a GPA-cum- agreement of sale and sold the property to plaintiff, whereas the documents relied on by the defendants show that Jala Prema Swarupa Kumari purchased the property from original owners
Kukkala Venkateswararao and others directly and from out of that property she sold the property referred in Ex.B2 to the defendants. The property of Ac.0.56 cents was sold to Rejeti Ramanamma, Mamidi Raja Lakshmi, Muktipudi Solmon,
Thummalapenta Rama Devi and Maruga john Wilson under Ex.A3. Whereas the defendants claims that Kukkala Venkateswararao and others executed GPA cum agreement of sale in favour of Jala prema Swarupa Kumari. The document relied on by the defendants do not show as to when Jala Prema Swarupa Kumari purchased the property directly from the original owner K.Venkateswararao and
K.Venkata Ramanamma. This is exactly whether the link in the claim of the defendants flow of title is missing. Peculiarly the defendants filed Ex.B6 title deed stands in the name of G.Bapuji and Ex.B5 original rectification deed. A perusal of both the documents reveals that Bapuji purchased the property from Jala Prema
Swarupa Kumari GPA holder of original owners K.Venkateswararao and
K.Venkata Ramanamma. Ex.B6 reveals the plot number in respect of the property sold wherein is kept blank. Ex.B5 is rectification deed for Ex.B6 where under the western and northern boundaries are changed.
22.It is pertinent to note that rectification deed was executed 13 years after the execution of the original deed under Ex.B6 sale deed, but to my knowledge a
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rectification of a registered deed shall be effected within 3 years from the date of execution of the document, but in this case on hand Ex.B5 came into existence after 13 years of execution of Ex.B6. Hence Ex.B5 is not inconsonance with law and it cannot be looked into. Therefore Ex.B6 only can be taken into consideration. Hence a perusal of Exs.B5 and B6 show that Jala Prema Swarupa
Kumari did not mention the document number under which she had a GPA-cum- agreement of sale from the original owners K.Venkateswararao and K.Venkata
Ravanamma, in order to sell the property on behalf of original owners. It requires a registered GPA and in the absence of in such document the sale deed executed by Jala Prema Swarupa Kumari on behalf of the original owners itself become a questionable document. Under these circumstances, the very title of Gummadi
Bapuji is unclear, the vendors of defendants 1 and 2 purchase the property is doubtful. As consequence thereof very defendants 1 and 2 is in doubt in respect of property that is referred in Ex.B2 sale deed. Further as seen from the record, the contention of the defendants that Jala Prema Swarupa Kumari sold more property than what she purchased. It is pertinent to observe that Jala Prema
Swarupa Kumari sold the suit schedule property to the plaintiff in the year 1989 under a registered sale deed Ex.A1 and delivered the possession to the plaintiff.
Therefore she did not have right and title possession over the property covered under Ex.A1 to alienate to another person subsequent to execution of Ex.A1.
Exs.B1 to B17 clearly shows that Jala Prema Swarupa Kumari got the property under Exs.B10 and B8. It is pertinent to observe that the property covered under
Exs.B10 and B8 are different properties one can also come to conclusion that the property purchased by plaintiff as origin of Ex.B10. Whereas Jala Prema
Swarupa Kumari sold the other property from Ex.B8, it is to be noted that the the defendants filed Exs.B8 and B10 GPAs and while Ex.B10 is in respect of 895 square yards, Ex.B8 in respect of 3660 square yards. Further Ex.B10 discloses that the same was executed giving power to Jala Prema Swarupa Kumari to execute a sale deed in respect of property specified therein in favour of Jana
Bandenamma D/o Purushotham resident of Kasturibaipeta, Vijayawada in furtherance of agreement of sale dated 25.11.1989.
23.Therefore it is clear from Exs.B1 to B17 that Jala Prema Swarupa Kumari can only execute sale deed in respect of 895 square yards to 3rd parties she in furtherance of Ex.B8 sold 306 square yards to plaintiff, therefore she left with 500 square yards to sell. Now if we examine the case of the defendants they claimed that property purchased by them is plot No.69 part of a lay out L.P. No.22/1997 covered by Ex.B1. But Ex.B1 does not disclose that lay out was laid by Jala
Prema Swarupa Kumari. This absolutely suggest that the defendants were duped by Jala Prema Swarupa Kumari. Therefore the documents relied on by the defendants i.e. Exs.B1 and B3 to B17 do not disclose any legal flow of title to
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execute Ex.B2 sale deed. Therefore, I am unable to hold that defendants purchased the suit schedule property from its owners. Per contra the plaintiff as already discussed above proved that he purchased the property under Ex.A1 which is duly supported by Exs.B8 and B10. In view of my above discussion, I hold that the plaintiff proved that the suit schedule property purchased from Jala
Prema Swarupa Kumari for valuable consideration under Ex.A1 sale deed.
24.The 2nd defendant after impleaded as party to the suit filed written statement claiming that he is possession of the property the plaintiff has to seek for recovery of possession. Though the defendants filed No.3 account under
Ex.B12 it is also not disclosing the survey number. The defendants failed to examine independent witness to prove their possession over the property. Even otherwise in view of the claim of the defendants that they purchased a house site in a lay out we cannot expect that the house plot will be mutated in No.3 account as it is meant for regarding cultivation details. Therefore Ex.B12 need not be looked into. On the other hand, the plaintiff examined Pws.2 and 3 to prove his possession. Pw.3 was questioned during cross-examination as to whether he can identify the person that attempted to encroach in the suit schedule property and
Pw.3 identified Dw.1 and said that it is he came to suit schedule property along with his men and attempted to encroach the property. Thus the evidence of
Pws.2 and 3 proved that the plaintiff is in possession and enjoyment of the suit schedule property. Above all, Pw.1 admitted the possession of the plaintiff in the plaint schedule property.
The counsel for plaintiff relied on a case held between Charanjit lal Mehra and others Vs Komal Saroj Mahanjan and others reported in 2005 (II) Supreme court
279. If there is any admission on behalf of the defendants or an admission that can be inferred from the facts and circumstances of the case without any dispute then in such a case in order to expedite and dispose of the matter such admission can be acted upon.
The case on hand the defendant as DW1 admitted the possession of the plaintiff over plaint schedule property. This admission supported the case of the plaintiff. Above citation squarely applicable to prove set of facts.
Therefore I hold that the plaintiff is having right and title over the suit schedule property as it is proved that the plaintiff is in possession of the suit schedule property need not again seek for recovery of the possession of the same
additional issues 1 and 4 answered in favour of plaintiff.
Addl.Issue No.3:
Whether the plaintiff’s claim against 2nd defendant is barred by limitation?
25.It is specific contention of the plaintiff that, the defendants attempted to dispossess him on 05.05.2017 and on 09.05.2017 and the suit is filed on 12.05.2017. Therefore regarding relief of declaration the suit was filed well within
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time prescribed under limitation Act. Hence 2nd defendant while claiming that he is possession of the property claimed that the suit is barred by limitation. In view of my above findings that the plaintiff is in possession of the property and defendants failed to prove that they are in possession of the property the question of recovery of possession does not arise. Therefore the plaintiff is seeking only declaration that to claiming the cause of action in the year 2017. As per article 58 of Limitation Act, 1963 a suit for declaration of title shall be filed within three years. The suit very much within the limitation, in my opinion though 2nd defendant have impleaded subsequently that will not tamper right of the plaintiff and effect limitation. Therefore I hold that the suit is very much within the limitation period. Additional issue No.3 answered against the defendants.
Addl. issue No.2:
Whether the suit for mere declaration is maintainable?
26.The plaintiff originally filed the suit seeking permanent prohibitory injunction and subsequently got amended the same for the relief of declaration while substituting the relief of declaration from the relief of permanent prohibitory injunction. At this juncture Section 34 of Specific Relief Act comes into play and it is reproduced hereunder forconvenience:
Discretion of court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
27.Thus as per Section 34 of Specific Relief Act wherein person who is entitled for consequential or alternative relief in addition of relief of declaration fails to the same the Court shall not grant the relief of declaration though the plaintiff establishes that he is entitled for the same. In this case on hand it is contention of the plaintiff that the defendants made vain attempts to dispossess him from the schedule property and on that ground only he filed the suit for injunction initially.
It clearly shows that, the plaintiff in addition to the relief of declaration has to seek for either permanent prohibitory injunction or for recovery of possession.
But as it is proved that the plaintiff is in possession of the suit schedule property he is suppose to seek for relief of permanent prohibitory injunction, in addition to the relief of declaration either as consequential relief or independent relief. But
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the plaintiff having got amended the suit from injunction to suit for declaration did not choose to include the relief for injunction the reasons known to him. As already stated above for cases, such as this Section 34 of Specific Relief Act comes in between proving the case and passing decree. In this case on hand though the plaintiff proved that he is entitled to declaration of his right and title over the suit schedule property. In view of his own mistake in not seeking for consequential relief of injunction as per section 34 of of Specific Relief Act comes into play and he prevented this Court from granting decree for declaration as prayed for. As a matter of fact, the plaintiff who have sought for amendment after filing of the written statement filed by 2nd defendant and the same is permitted under order 2 Rule 2 of CPC but the plaintiff did not utilize that opportunity also.
Thus it is the plaintiff own deeds that left this Court in such a situation to deny the relief sought for. Therefore I hold that the suit as filed for mere declaration by the plaintiff is effects by section 34 of Specific Relief Act and therefore the suit is not maintainable. Hence Addl. issue No.2 answered against the plaintiff.
Addl. issue No.5: To what relief?
28.In view of my above discussion, the suit is not maintainable hence liable for dismissal.
29. In the result, the suit is dismissed. In the circumstances of the suit no costs awarded.
Dictated to the stenographer, transcribed by him, corrected and
pronounced by me in the open court, this the 12th day of September, 2023.
Sd/- K.Neelima
VII ADDITIONAL SENIOR CIVIL JUDGE
VIJAYAWADA
APPENDIX OF EVIDENCE
Witness examined
For Plaintiff : For Defendants : PW1Nerusu Naga Raju DW1Akumalla Khasim PW2Goriparthi Venkateswaramma DW2Gummadi Babuji PW3Varikuti Naga Reddy
Documents marked
For Plaintiff:
Ex.A1Original sale deed dated 15.09.1997. Ex.A2Attested copy of registered GPA dated 30.11.1989 Ex.A3Attested copy of sale deed dated 29.03.1985 Ex.A4Encumbrance certificate issued on 09.05.2017 Ex.A5Photographs five in number along with CD Ex.A6Served copy of caveat petition along with memo dated 12.05.2017
For Defendants:
Ex. B1is lay out plan
O.S.No.204 of 2019 13 Dt 12.09.2023
Ex. B2Original registered sale deed dated 27.09.2004 Ex. B3Original registered agreement of sale cum GPA dated 16.07.2004 Ex. B4Receipt dated 14.08.2004 Ex. B5Original registered ratification deed dated 23.08.2003 Ex. B6Original registered sale deed dated 22.09.1990 Ex. B7Certified copy of GPA dated 20.6.1989 Ex. B8Certified copy of settlement deed dated 7.7.1962 Ex. B9Certified copy of FMB relating to survey No.474 of Gollapudi village Ex. B10Certified copy of GPA dated 30.11.1989 Ex. B11Certified copy of resettlement record of Gollapalli village dated 20.7.2023. Ex. B12True copy of adangal for the fasli 1410 issued by Deputy Tahsildhar Ex. B13Encumbrance certificate dated 7.8.2023 Ex. B14Certified copy of sale deed vide document No.1066/1998 dated 31.3.1998 Ex. B15Certified copy of sale deed vide document No.1067/1998 dated 31.3.1998 Ex. B16Certified copy of sale deed vide document No.1426/2005 dated 7.2.2005 Ex. B17Certified copy of sale deed vide document No.5320/2017 dated 21.12.2017.
Sd/- K.Neelima
VII ADDITIONAL SENIOR CIVIL JUDGE
VIJAYAWADA
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